FOSTER CITY, Calif. — In the annals of criminal law, there has never been anything quite like the case of the People vs. George Thomas Franklin Sr.

Franklin, a craggy-faced middle-aged man, was living near Sacramento in 1989 when his grown daughter, Eileen Franklin-Lipsker of Canoga Park, came forward and told an incredible tale.

As a child 20 years earlier, she said, she witnessed her father rape her childhood friend, 8-year-old Susan Nason, then smash the little girl's skull with a rock. Even moreastonishing, Franklin-Lipsker said she had repressed the memory for two decades, recovering it only after her own daughter neared Susan's age.

Armed with Franklin-Lipsker's story, San Mateo County prosecutors reopened the long-forgotten murder and won a conviction in 1990. Superior Court Judge Thomas M. Smith denounced Franklin as "wicked and depraved," and sentenced the onetime firefighter to life in prison. It was a first. Never before had recovered memory been used in a criminal prosecution.

Franklin remains in prison today. But the case against him seems to be unraveling. U.S. District Judge Lowell Jensen, appointed to the bench by President Ronald Reagan in 1986, reversed the conviction this year, concluding that "the risk of an unreliable outcome in this trial is unacceptable."

San Mateo County Dist. Atty. Jim Fox is expected to decide within a month whether to try Franklin again or allow his release. But even as prosecutors remain convinced of Franklin's guilt, they know that persuading a jury beyond a reasonable doubt that Franklin committed the murder 26 years ago will be far more difficult the second time.

"Let's be honest, in the five years since the conviction, there is a whole lot more skepticism about repressed memory," said Deputy Atty. Gen. Bruce Ortega, who argued the prosecution's case on appeal.

The crucial question facing prosecutors is whether a jury would trust the reliability of repressed memories enough to win a conviction. Mental health experts are divided over whether recollections called up years after an event are real and numerous recantations in similar cases in the years since the Franklin conviction have fortified the doubters.

"There is no good scientific support for it," said Dr. Elizabeth Loftus, University of Washington professor of psychology. "We should not be dragging people through the courts on folklore."

Loftus testified for the Franklin defense in the first trial, and since has joined the ranks of the harshest critics of the recovered memory theory. But like many others, she wants a Franklin retrial, hoping it will help resolve the debate.

"The psychotherapy community is so viciously divided on the subject, and that vicious division may play itself out in the trial," Loftus said.

Before making their decision on whether to retry Franklin, San Mateo County prosecutors are studying the latest science on repressed memory and talking to experts.

"From the beginning, we felt the man did commit the crime," Chief Deputy Dist. Atty. Stephen Wagstaffe said. "But you can never take a case to trial unless there is reasonable probability that the jury will return a verdict of guilty."

For all the problems, there are powerful reasons for a retrial, not the least of which is the attention the case attracted. Franklin-Lipsker's story has been the focus of two books, including one she coauthored, plus chapters in other books, and a made-for-TV movie. Most important, if they drop the case, prosecutors would be acknowledging that they discount a story that kept a man in prison for five years.

"Politically, they've got to retry it," Harry Maclean, a lawyer who wrote one of the Franklin books, "Once Upon a Time." "They're going to give it to the jury, and let the jury decide. There's no way to back off."

When the story began in September, 1969, the Nasons and the Franklins lived a few doors from one another in Foster City, then a quiet tract populated by young families and lined with inexpensive homes built on bay fill. Developers tried to make it more idyllic by carving a series of lagoons.

To the families there, the neighborhood radiated safeness.

Susan Nason and Eileen Franklin were third-graders at a school down the block from their homes. One autumn afternoon, Susan's mother sent the child on a brief errand. She never returned.

The little girl's remains were found months later, left under an old mattress, near Crystal Springs Reservoir about 15 miles west of Foster City. A ring on her finger was bent, suggesting she had tried to ward off blows. What leads there were dried up over time.

For all the problems, there are powerful reasons for a retrial, not the least of which is the attention the case attracted. Franklin-Lipsker's story has been the focus of two books, including one she coauthored, plus chapters in other books, and a made-for-TV movie. Most important, if they drop the case, prosecutors would be acknowledging that they discount a story that kept a man in prison for five years.

"Politically, they've got to retry it," Harry Maclean, a lawyer who wrote one of the Franklin books, "Once Upon a Time." "They're going to give it to the jury, and let the jury decide. There's no way to back off."

When the story began in September, 1969, the Nasons and the Franklins lived a few doors from one another in Foster City, then a quiet tract populated by young families and lined with inexpensive homes built on bay fill. Developers tried to make it more idyllic by carving a series of lagoons.

To the families there, the neighborhood radiated safeness.

Susan Nason and Eileen Franklin were third-graders at a school down the block from their homes. One autumn afternoon, Susan's mother sent the child on a brief errand. She never returned.

The little girl's remains were found months later, left under an old mattress, near Crystal Springs Reservoir about 15 miles west of Foster City. A ring on her finger was bent, suggesting she had tried to ward off blows. What leads there were dried up over time.

The body of missing nine-year-old Susan Nason of Foster City, her head caved in by a severe blow behind the right ear, was found Tuesday in the Crystal Springs Lake area of San Mateo County. The girl disappeared from her home Sept. 22. She has been dead for more than two months, according to the county coroner. Positive identification was made from her dental charts, a silver ring on her right middle finger, and material from the dress she was wearing under a pair of blue jeans. The girl's body was so badly decomposed that police say it is impossible to determine is she had been sexually molested. Foster City Police Chief Gordon Penfold said Tuesday night that the child's parents, Mr. and Mrs. Donald Nason, were "in shock." "They've had an emotional collapse," Penfold said. He exhibited a hemline from Susan's red, green, and blue print cotton dress and said Mrs. Nason had identified the stitch work as her own. A shoe and the girl's underclothing also were definitely identified. The blow to her head is listed as the probable cause of death. The body, discovered by a patrolman for the San Francisco Watershed Department, was found 35 feet down an embankment of the San Mateo-Half Moon Bay road, about 1 1/2 miles west of Skyline Boulevard. County Coroner Paul Jensen said there was a small bit of light brown hair left on the girl's skull. She also wore a bra, one white sock, and one brown buckle shoe. Foster City Police appeared pessimistic about solving the Nason case. One officer said that leads were scarce in September and "they are just as scarce now." "This is going to be a tough case to crack," Penhold said. "But we've got the Sheriff's Office with us now." One the day she disappeared Susan had come home from school in Foster City, a man-made island in the bay. The neighborhood is fairly isolated, with only one road in and out. She asked her mother's permission to take a friend's gym shoes to her. She left the house about 4 p.m. and was never seen again. Neighbors searched the many canals in Foster City and parent patrols began watching their children as they went back and forth to school, fearing the kidnapper might strike again. Divers scoured the canals but found no body.

Before MERRILL and TRASK, Circuit Judges, and FERGUSON, District Judge.

PER CURIAM:

This is an appeal from an order of contempt of court.

On October 6, 1969, Joseph Alex Rudy was arrested after picking up a bag which had been placed by government agents pursuant to handprinted ransom letters received in a kidnapping case.

The next day a complaint was filed before the United States Commissioner, charging Rudy with depositing for mailing a communication containing ransom demands. 18 U.S.C. § 876. The complaint was supported by the affidavit set forth in the Appendix. The government does not contend that Rudy was involved in the abduction of the kidnapped victim. Counsel was appointed for Rudy by the Commissioner and a preliminary hearing was scheduled for October 16, 1969.

On October 8, 1969, Rudy moved to quash the warrant of arrest on the ground that the affidavit of Special Agent Morgan was insufficient to establish probable cause. The motion was denied by the Commissioner.

At the preliminary hearing, counsel stipulated that the affidavit be considered [429 F.2d 994]as evidence in that proceeding and no additional evidence was received. However, the Commissioner granted the government a continuance of the hearing to enable the government to seek an order from the district court compelling Rudy to furnish handprinted exemplars.

Based upon the complaint and affidavit, the government, on October 20, 1969, filed its motion to compel Rudy to submit and produce handprinted exemplars for examination by the government. The district court, after a hearing, issued its order finding (1) the affidavit was sufficient to support the complaint, (2) the facts set forth in the affidavit contained facts of probable cause for Rudy's arrest, and (3) ordered Rudy to "furnish the United States handprinting exemplars made by him of the alphabet in the English language in such quantity as is sufficient for expert analysis by the Government".

Rudy refused to comply with the court's order. An order to show cause in re contempt was issued. Rudy was adjudged in contempt of court for his refusal, and committed until he complied with the order. He is on bond pending this appeal.

Rudy contends that the "compelled creation of HANDPRINTING exemplars as ordered is violative of his privilege against self-incrimination and due process of law secured to him by the Fifth Amendment". Yet he states, "Conceding, as we are bound by Gilbert [Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)] to concede, that compelling a handwriting exemplar, for identification purposes only, and apart from its written content, does not violate the Fifth Amendment privilege against self-incrimination", he cannot be required to give handprinting exemplars, because handprinting is susceptible to erroneous identification.

We hold that handprinting is within the handwriting rule of Gilbert.

The order to produce does not compel any selected phrases, merely exemplars of the alphabet. Rudy is assisted by counsel, and if any unrepresentative exemplar "is taken, this can be brought out and corrected through the adversary process at trial * * *." Gilbert, supra at 267, 87 S.Ct. at 1953. All issues in regard to whether or not disputed handprinting is subject to identification may likewise be litigated through the adversary process at trial.

Rudy contends further that (1) there was no showing of need for the exemplars, and (2) this court in its supervisory power over the administration of criminal justice should not permit district courts to aid law enforcement officers in the investigative process. The affidavit clearly demonstrates probable cause for Rudy's arrest and the need for exemplars. Rudy contends that the government, through its investigative processes, could obtain other exemplars of Rudy's handprinting, and that for the court to require Rudy to produce them is in effect permitting a short-cut method of acquiring evidence. The argument overlooks the fact that it was established before the district court that the government had no exemplars of Rudy's hand-printing, although his person and apartment had already been lawfully searched.

The order of contempt is affirmed.

APPENDIXSTATE AND NORTHERN DISTRICT | OF CALIFORNIA > ss. AFFIDAVIT CITY AND COUNTY OF SAN FRANCISCO | I, Cosby J. Morgan, the undersigned, being duly sworn, depose and say:

"That I am a Special Agent of the Federal Bureau of Investigation and while acting in that capacity determined from the Foster City Police Department that Susan Nason, 9 years of age, was reported missing to the Foster City Police Department by her parents, Mr. and Mrs. Donald Nason, on September 22, 1969. Extensive investigation by the Foster City Police Department has to date failed to establish any information concerning Susan's present whereabouts.

"On September 27, 1969 (same day as the Lake Berryessa attack), Susan's parents received in the United States mail, a letter postmarked San Francisco, California, postmarked being September 25, 1969. The letter, in essence, read:

"Read and follow these directions carefully. Don't show this to the pigs or you will never see this freckle-face brat again alive. That is, I want $10,000 in $10's and $20's in old bills — put the money in a paper sack. Go to the corner of Eddy and Mason Streets (two blocks from Mason & Geary), San Francisco, at 11:00 PM, Saturday, put money inside door of Ambassador Lounge and leave. You will find your brat at bus station if money is picked up without trouble. Remember, no police or else your little Susan is dead.

"On September 27, 1969, directions were followed by Susan's father, Donald Nason, and package was left in doorway of Ambassador Lounge as instructed. After waiting approximately one hour, package was retrieved by Victim's father, and no attempt was made by anyone to take package.

"On September 30, 1969, Mr. and Mrs. Donald Nason received a second letter postmarked San Francisco, September 29, 1969. This letter indicated that person who wrote first letter had observed the drop and subsequent pickup of the package by Mr. Donald Nason. The writer indicated in this letter that he felt that the area was being watched by policemen and instructed Mr. Nason to place $20,000 into a paper bag and drop it at the same spot on Monday night, which would be October 6, 1969, at the same time. He indicated in this letter that if any policemen were observed, he would send the fingers of Susan to Mr. Nason one at a time.

"On October 6, 1969, as instructed, Mr. Nason again delivered the paper bag as instructed to the doorway of the Ambassador Lounge, corner of Eddy and Mason Street, San Francisco, California.

"As observed by Special Agents of the Federal Bureau of Investigation, the package was not readily observable from the street approaching the doorway from the east. Defendant approached the doorway from the east. Within the doorway area were other pieces of debris and bags, the bag placed by Victim Nason being tan or beige, another bag being brown and one being light in color and what appeared to be a charcoal bag.

"At approximately 11:20 PM, a white male, age about 50, 5'6" in height, heavy build, approaching the doorway from the east i. e., walking west on Eddy Street was observed by Assistant Special Agent in Charge James T. Moreland and Special Agent Charles E. Galvin to enter the doorway to Ambassador Lounge and without hesitation pick up package immediately rolling it up without looking inside. This individual immediately started to walk west on Eddy Street, where he was arrested by Special Agents Cosby J. Morgan and Norbert H. Rascher. At the time of arrest, unknown male exclaimed, `All I did was pick up the package.'"(S) Cosby J. Morgan ________________________________ COSBY J. MORGAN, Special Agent Federal Bureau of Investigation Sworn and Subscribed to Before Me This 7th Day of October, 1969 (S) Richard S. Goldsmith ____________________________ RICHARD S. GOLDSMITH U.S. Commissioner

The man that picked up the ransom was Joseph Alex Rudy. I'm trying to find information on him at the moment, but having no luck at all. I think he died May 19, 1980 and is buried at Holy Cross Catholic Cemetery in Colma, CA, but I'm not sure if it's the right Joseph Rudy or not.

There was a Joseph Rudy born Oct. 1, 1918 and passed away Oct. 7, 2007. No other info on him at the moment. EDIT: Looks like this Joseph Rudy was from New Jersey. Still could be the guy though.